Supreme Court New South Wales

• Medium Neutral Citation: Smalley v Motor Accidents Authority of New South Wales [2012] NSWSC 1456
• Hearing dates: 12 October 2012
• Decision date: 02 November 2012
• Jurisdiction: Common Law - Administrative Law
• Before: Rein J

Decision

No error in the administrative decisions to reject application for exemption from the Motor Accidents Authority Claims Assessment and Resolution Service on basis that insurer had admitted liability. Plaintiff's appeal from the decisions dismissed.

• Catchwords: TRAFFIC LAW - statutory compensation in respect of motor vehicle accidents - New South Wales - where insurer is deemed to have denied liability - whether insurer permitted thereafter to admit liability for part of the claim - permissible for insurer to admit partial liability after being deemed to have denied liability; STATUTES - acts of parliament - interpretation - construction of s 81 of the Motor Accidents Compensation Act 1999 - whether s 81(2) permits admission of partial liability both initially (s 81(1)) and after liability has been denied (s 81(4)) - where s 6 requires the Court to prefer construction which promotes the objects of the Act
• Legislation Cited: Motor Accidents Compensation Act 1999; Motor Accidents Authority of New South Wales Claims Assessment Guidelines
• Cases Cited: Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; Davis v Davis (1995) 21 MVR 348; Gudelj v Motor Accidents Authority of New South Wales [2011] NSWCA 158; (2011) 58 MVR 342; Gudelj v Motor Accidents Authority of New South Wales [2010] NSWSC 436; (2010) 55 MVR 357; Nominal Defendant v Gabriel (2007) [2007] NSWCA 52; 71 NSWLR 150; Sivas v Government Insurance Office (NSW) (1990) 12 MVR 272; Zurich Australia Insurance Ltd v Motor Accidents Authority (NSW) [2010] NSWSC 214
• Texts Cited: Macquarie Dictionary, 5th ed (2009); Shorter Oxford English Dictionary, 6th ed (2007)
• Category: Principal judgment
• Parties: Michael John Andrew Smalley (Plaintiff); Motor Accidents Authority of New South Wales (First Defendant); CIC Allianz Insurance Ltd (Second Defendant)
• Representation: Counsel: D S Hooke SC; S A Beckett (Plaintiff); M Robinson SC (Second Defendant); Solicitors: Beilby Poulden Costello (Plaintiff); Crown Solicitor's Office (NSW) (First Defendant); TL Lawyers (Second Defendant)
• File Number(s): SC 2012/188500

Judgment

1 These proceedings relate to a motor accident in which the vehicle driven by the plaintiff, Mr Michael John Andrew Smalley, was struck by another vehicle driven by a third party. The third party was insured by the second defendant, CIC Allianz Insurance Ltd ("the Insurer"), under a policy of insurance. Mr D S Hooke SC appears with Mr S A Beckett for the plaintiff and Mr M Robinson SC appears for the Insurer.

2 The accident occurred on 16 December 2005. No claim was served on the Insurer until 25 January 2010. The Insurer acknowledged receipt of the claim by letter of 5 February 2010, but the Insurer noted that the claim did not meet the requirements of s 74 of the Motor Accidents Compensation Act 1999 ("the Act") because no medical certificate was included in the claim form and by a second notice the Insurer requested a full and satisfactory explanation for the delay. The plaintiff did subsequently provide an explanation for the delay which the Insurer accepted was "full" but did not accept was "satisfactory" within the meaning of s 66(2) of the Act: see p 42 of Exhibit A (all page references hereafter are to Exhibit A).

3 The plaintiff then sought a "special assessment" (see s 96 of the Act) from the first defendant, the Motor Accidents Authority of New South Wales ("the Authority"), as to whether his late claim could be made in accordance with s 73 of the Act. On 16 November 2010, Claims Assessor Ms Helen Wall determined that the plaintiff could make a late claim and issued a certificate to that effect: see p 41.

4 On 24 January 2011, the Insurer wrote to the plaintiff's solicitor (see p 81) stating:

"Although the decision was made in favour of your client and it was determined a late claim could be made in this matter, the writer notes this assessment and the Certificate is not binding on the Insurer. The Insurer maintains this claim may not be made pursuant to Section 73 of the MACA.

Because the Insurer maintains this claim may not be made, the Insurer is not required to admit or deny liability for the claim pursuant to Section 81(1), and will not do so. The fact that the Insurer declines to give written notice to the claimant pursuant to Section 81(1) is not to be taken as a denial of liability pursuant to Section 81(3).

The Insurer does not accept any liability for this claim regardless of whether the matter proceeds to assessment under Section 94 of the MACA. The Insurer will not regard any assessment under Section 94 as binding on the Insurer." (bold emphasis added)

5 On 7 February 2011, the plaintiff made an application to the Authority pursuant to s 92(1)(a) and cl 8.11.1 of the Authority's Claims Assessment Guidelines ("the Guidelines") for an exemption from the claims assessment process with the Authority's Claims Assessment and Resolution Service ("CARS"): see pp 11 - 20. That application was refused by the Principal Claims Assessor Ms Belinda Cassidy on 7 March 2011: see pp 79 - 80. I shall refer to this decision as "the first decision".

6 On 18 August 2011, the plaintiff made a further application for an exemption under s 92(1)(b) of the Act.

7 On 21 September 2011, the Insurer's solicitor wrote to the plaintiff's solicitor under the heading "s 81 Notice" (see p 109), stating:

"The insurer denies liability for this claim.

The insurer accepts the accident occurred due to the fault of the insured driver, Ju Xian Zhu."

8 On 27 January 2012, Claims Assessor Ms Josephine Snell rejected the plaintiff's application, stating that the matter was suitable for assessment at CARS and that she did not propose to recommend that the matter be exempt: see Exhibit SHJ-8 to the affidavit of Mr S Hall-Johnston sworn 22 June 2012. Assessor Snell did give reasons which the plaintiff describes as "cursory" and which description the Insurer disputes. I shall refer to this as "the second decision". In the reasons Assessor Snell stated that fault had not been admitted by the Insurer. It had in fact been, as Assessor Snell acknowledged in subsequently published reasons: see pp 113 - 114.

9 On 16 April 2012, the plaintiff made a further application for exemption under s 92(1)(a) of the Act (see pp 53 - 62). The Principal Claims Assessor refused the application (see pp 110 - 112) ("the third decision"), noting that the Insurer had admitted fault on the part of its insured, and she said:

"It is clear that while the insurer has denied liability, and fulfilled its duty under s 81, it has not denied fault on the part of its insured driver as is required by cl 8.11.1 to ground a mandatory exemption. The insurer has in fact admitted that its insured driver is at fault, and as such I cannot be satisfied that it has denied fault and that this is an exemptible claim.

...

I am not satisfied that the insurer had denied that the owner or driver of the insured vehicle is at fault in the use or operation of the vehicle it insures. The claim is not therefore an exemptible claim pursuant to s 92(1)(a) and cl 8.11.1 of the Claims Assessment Guidelines."

10 The plaintiff challenges each of these decisions. In relation to each of the decisions, there arises questions concerning the effect of s 81 of the Act, which is in the following terms:

"81 Duty of insurer with respect to admission or denial of liability

(1) It is the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under section 72.

(2) If the insurer admits liability for only part of the claim, the notice is to include details sufficient to ascertain the extent to which liability is admitted.

(3) If the insurer fails to comply with this section, the insurer is taken to have given notice to the claimant wholly denying liability for the claim.

(4) Nothing in this section prevents an insurer from admitting liability after having given notice denying liability or after having failed to comply with this section.

(5) It is a condition of an insurer's licence under Part 7.1 that the insurer must comply with this section."

and s 92, which is in the following terms:

"92 Claims exempt from assessment

(1) A claim is exempt from assessment under this Part if:

(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or

(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.

(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)."

11 I shall also set out the cl 8.11.1, cl 8.11.2, cl 8.12 and cl 14.16 of the Guidelines:

"8.11 For the purpose of section 92(1)(a), the PCA [Principal Claims Assessor of the Authority appointed by the Authority under section 99A] shall issue a certificate of exemption when satisfied that, as at the time of the consideration of the application, the claim involves one or more of the following circumstances:

8.11.1 the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle is denied by the insurer of that vehicle in its written notice issued in accordance with section 81;

8.11.2 the fault of the owner or driver of a motor vehicle, in the use or operation of the vehicle, is not denied by the insurer of that vehicle, but the insurer of that vehicle makes an allegation in its written notice issued in accordance with section 81, that the claimant, or in a claim for an award of damages brought under the Compensation to Relatives Act 1897 the deceased, was at fault or partly at fault and claims a reduction of damages of more than 25%;

...

Dismissal of exemption application

8.12 The PCA may dismiss an application for exemption made under section 92(1)(a) and clause 8.1 if the PCA is satisfied that:

8.12.1 that the claim may not be exempted in accordance with section 92(1)(a) and clause 8.11 of these Guidelines;

8.12.2 the applicant has withdrawn the application;

8.12.3 the claimant is not pursuing or prosecuting the application or the claim; or

8.12.4 the section 91(1) time limits referred to in clauses 8.4 and 8.5 have not been satisfied (if relevant) or the application is otherwise invalid.

...

14.16 In determining whether a claim is not suitable for assessment, an Assessor and the PCA shall have regard to the circumstances of the claim as at the time of the preliminary determination including, but not limited to:

14.16.1 whether the claim is exempt under section 92(1)(a) because the claim involves one or more of the circumstances set out in clause 9.11;

14.16.2 the heads of damage claimed by the claimant and the extent of any agreement by the insurer as to the entitlement to those heads of damage;

14.16.3 whether the claim involves complex legal issues;

14.16.4 whether the claim involves complex factual issues;

14.16.5 whether the claim involves complex issues of quantum or complex issues in the assessment of the amount of the claim including but not limited to major or catastrophic, spinal or brain injury claims;

14.16.6 whether the claimant has been medically assessed and is entitled to non-economic loss pursuant to section 131 and the claim involves other issues of complexity;

14.16.7 whether the claim involves complex issues of causation in respect of the relationship between the accident, the injuries sustained and disabilities arising from it including but not limited to multiple accidents or pre-existing injuries or medical conditions;

14.16.8 whether the insurer is deemed to have denied liability under section 81(3);

14.16.9 whether the claimant or a witness, considered by the Assessor to be a material witness, resides outside New South Wales;

14.16.10 whether the claimant or insurer seeks to proceed against one or more non-CTP parties; and/or

14.16.11 whether the insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.

(Note: If an insurer makes an allegation of 'fraud' in terms of the circumstances of the accident, the matter will be exempt under section 92(1)(a) and clause 8.11.6. If an insurer makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident, the insurer may be required to provide particulars in writing of the general nature of any such allegation under clause 17.13, and an Assessor may then consider whether a matter is not suitable for assessment under clause 14.11 to 14.16, particularly in light of clause 14.16.11.)" (emphasis added)

12 The word "claim" is defined in s 3 of the Act as follows:

"claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle."

13 It should be noted that the Guidelines are, by s 69(b) of the Act, to be treated as statutory rules and have been described as a form of delegated legislation: see Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090 at [17] and Zurich Australia Insurance Ltd v Motor Accidents Authority (NSW) [2010] NSWSC 214 at [34].

14 The word "fault" is defined in s 3 of the Act as follows:

"fault means negligence or any other tort."

15 Regard needs to be had to the decision of the New South Wales Court of Appeal in Gudelj v Motor Accidents Authority of New South Wales [2011] NSWCA 158; (2011) 58 MVR 342, a decision handed down on 24 June 2011 which reversed the trial judge's decision in Gudelj v Motor Accidents Authority of New South Wales [2010] NSWSC 436; (2010) 55 MVR 357. In Gudelj v Motor Accidents Authority of New South Wales at first instance, McDougall J had held that s 81(3) only applies if the insurer is in default of its obligations under s 72 of the Act and that that section requires it to respond to a claim made within six months after the relevant date, not to claims made outside that limit, with the consequence that the deeming provision (s 81(3)) did not apply.

16 In the Court of Appeal, Hodgson JA, with whom Giles JA and Handley AJA agreed, held that the requirement for an insurer to give written notice in accordance with s 81 was not limited to claims that met the requirements of s 72 in terms of time. Having referred to sections which limit the time for raising non-compliance, that is, s 70(4), 73(4), 76(2), his Honour held at [67], for reasons explained at [62] - [66]:

"In my opinion the insurer does have the duty referred to in s 81(1), even in respect of a claim that is defective by reason of non-compliance with s 70, s 72 and/or s 74, and even if the insurer has not lost the right to reject the claim for that reason and/or has actually rejected it. Where, as in this case, the insurer has rejected the claim, and has not otherwise given the written notice required by s 81(1), two alternative analyses are open:

(1) to hold that a written rejection of a claim itself counts as a written notice denying liability for the claim; or

(2) to hold that there has been a breach by the insurer of its duty under s 81(1), and thus a breach of the condition of its licence imposed by s 81(5), albeit that this breach might be treated as de minimis."

17 His Honour preferred alternative (1) set out in [67]. His Honour agreed with the trial judge's view that s 73(3) applied to claims that were exempt under s 92(1)(b) and not just to s 92(1)(a) and the Court, in addition to quashing the decision of the assessor, remitted the matter to the assessor for further consideration.

18 In Nominal Defendant v Gabriel (2007) [2007] NSWCA 52; 71 NSWLR 150, the insurer made an admission that the accident occurred through the fault of the insured driver and stated "we admit breach of duty of care in respect of your client's claim". Campbell JA held at [85] that:

"The admission made by AAMI's letter of 3 June 2003 was of breach of duty of care. As the claim made by the plaintiff was that the driver of the unidentified vehicle had committed the tort of negligence, and as someone is liable for the tort of negligence only if that person owes a duty of care to the plaintiff, has breached that duty of care, and the plaintiff has thereby suffered damage, the admission made by AAMI was not, strictly, an admission of liability for the claim. The admission of breach of duty of care necessarily contained within it an admission of the existence of a duty of care, but no admission was made of any consequential suffering of damage. Thus it counts as an admission of liability for only part of the claim. An admission of liability for part of a claim, in this way, can fairly be described as a notice that includes "details sufficient to ascertain the extent to which liability is admitted", and thus is expressly contemplated by s 81(2) MAC Act."

19 Hodgson JA concurred, adding reasons of his own, and Basten JA dissented, but on grounds unconnected with Campbell JA's analysis of the effect of the section before proceedings are commenced.

The third decision

20 It was agreed that since no notice was given pursuant to s 81(1) within the three month period after the claim was lodged, the Insurer was by virtue of s 81(3) deemed to have given notice to the claimant wholly denying liability for the claim. The central question in the present case was whether the Insurer could only avail itself of s 81(4) by admitting liability in an unqualified form. The plaintiff submits that a deemed denial of liability (or actual denial of liability) is a serious step which cannot be undone except within the narrow confines of s 81(4), that is, only by a full admission of liability, not by a partial admission of liability. The Insurer submits that there is no warrant for restricting an admission of liability to only one that is a full admission of liability and that it is able to make an admission of liability outside the three month period to the same extent as it can in giving a notice within the three month period, availing itself of s 81(1).

21 The plaintiff contended that "admitting fault" and "admitting liability" are not the same thing. The Act does not define "liability" or "liable". The Court's attention was drawn to the definition of "liability" and "liable" in the Macquarie Dictionary, 5th ed (2009):

"liability 1. an obligation, especially for payment; debt or pecuniary obligations (opposed to asset). 2. something disadvantageous. 3. the state or fact of being liable.

liable 1. subject, exposed, or open to something possible or likely, especially something undesirable. 2. under legal obligation; responsible or answerable."

and in the Shorter Oxford English Dictionary, 6th ed (2007):

"liability 1. LAW. The condition of being liable or answerable by law or equity. 2. The condition of being liable or subject to something, apt or likely to do or to suffer, something undesirable. 3. A thing for which a person is liable; esp. in pl., the debts or pecuniary obligations of a person or company. 4. transf. & fig. A person who or thing which puts one at a disadvantage, a hindering responsibility, a handicap.

liable 1. LAW. Bound or obliged by law or equity; answerable at law; subject to a tax, penalty, etc.; bound in law to do..."

The Act provides that an admission of fault in respect of a motor accident claim is an admission of the tort of negligence. The Guidelines make a distinction between admitting fault and admitting liability. An admission of breach of duty is not an admission of the tort of negligence, as the passage from Gudelj v Motor Accidents Authority of New South Wales at [67] set out above demonstrates. This is because the tort of negligence encompasses not only breach of duty but injury or damage consequent upon that breach - that is the position at common law: see Sivas v Government Insurance Office (NSW) (1990) 12 MVR 272 per Samuels JA, followed in Davis v Davis (1995) 21 MVR 348.

22 The difficulty is that s 81(1) posits admission or denial of liability "for the claim" and s 81(2) posits admission of liability for "part of the claim". Read literally, there is no room for admission of breach of duty but not damages, or admission of fault but not admission of liability because, for example, the claim is late or because it does not meet some other criterion.

23 Mr Hooke argued that an insurer would meet the requirement of s 81 by, within the three months, admitting fault on the part of the driver but denying liability for the claim because of the procedural defect in the making of the claim. He submitted that in such a scenario, because "fault" had been admitted, cl 8.11.1 would produce the result that a mandatory exemption under s 92(1)(a) would not have been given although a s 92(1)(b) exemption could still have been available: see T4.35 - 50.

24 The Court in Nominal Defendant v Gabriel, by holding that a s 81 notice which admits breach of duty is an admission of liability for "part of the claim", accepts that "part of" is not limited to part of the heads or amount of damages but to part of the ingredients making up the claim. It is true that s 81(4) does not expressly state that the insurer can "admit liability" by admitting liability for part of the claim but nor, for that matter, does s 81(1). The partial admission option is found in s 81(2) and if s 81(2) is seen as dealing with partial admissions, there is no indication that s 81(4) should be quarantined from the application of s 81(2). Another way of expressing this is to say that s 81(2) deals with partial admissions and it is not limited in effect to partial admissions under s 81(1). This leads me to conclude that s 81(4) permits the insurer to admit liability to the same extent that it is permitted to do so pursuant to s 81(2), even if it has wholly denied liability previously by notice or is deemed to have wholly denied liability by its failure to issue a notice.

25 I reach that conclusion simply as a matter of construction of the words of s 81 and incorporating the reading of the words "admits liability... for the claim" expounded in Gudelj v Motor Accidents Authority of New South Wales. However, in construing any section of the Act, s 6 of the Act requires the Court to prefer a construction that would promote the objects of the Act, set out in s 5, to one that would not promote the objects of the Act.

26 The construction advanced by the plaintiff in this case prevents an insurer from making a partial admission after the expiry of three months. Mr Hooke resisted the Insurer's claim that the construction advanced by the plaintiff requires s 81(4) to be read in isolation from s 81(2), but I think it does.

27 The objects set out in s 5(1) of the Act are:

"(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,

(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,

(c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure,

(d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales,

(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities,

(f) to ensure that insurers charge premiums that fully fund their anticipated liability,

(g) to deter fraud in connection with compulsory third-party insurance."

28 It should be noted that in exercising their functions and interpreting the provisions of the Guidelines, the assessors (inter alia) must have regard to the objects of CARS set out at cl 1.14 and the objects of the Act: see cl 1.13 - cl 1.16.

29 I cannot discern an object listed in s 5(1)(a) - (g) that is promoted by the construction urged on behalf of the plaintiff. On the other hand, I can see an object that is promoted by the construction which I favour - namely the encouragement of early resolution of compensation claims. To permit insurers to make admissions will reduce the scope for conflict and delay.

30 If an insurer has denied liability on first receipt of the claim and given a notice to that effect but then on receipt of further information or, on further reflection, decides that the insured driver was at fault and that an admission should be made to that effect, even though the insurer remains convinced that the claimant has suffered no damage, I can see no policy reason why the legislature would wish to prevent such a partial admission being made and prevent a claim otherwise appropriate for assessment within the CARS scheme from being dealt with in the system.

31 There seemed to be a suggestion that a partial admission outside the three month period was unfair to a claimant and that therefore an insurer should not be permitted to escape the effect of the deemed denial of liability. For so long as the deemed denial of liability remains on foot, the claimant is entitled to take advantage of it by seeking a mandatory exemption pursuant to s 92(1)(a) and the Guidelines. An admission by an insurer is likely to be to the benefit of the claimant, not to his or her detriment.

32 A further point is that under the legislative scheme an insurer who makes an admission, and the claim is assessed by CARS, can only overcome the effect of that admission if fraud is involved: see s 118(2) and see the judgment of Basten JA in Nominal Defendant v Gabriel, particularly at [26] - [28]. The ability to withdraw an admission is therefore more constrained than it is in the court environment.

33 An approach which will impel the matter to a court hearing when the case is of a type suitable for assessment under the elaborate scheme set up by the Act is not one which should be encouraged.

34 It follows, in my view, that the letter of 21 September 2011 (p 109) which accepted that the accident occurred due to the fault of the insured driver but denied liability "for this late claim" was a notice which complied with the requirements of s 81(4).

35 It is necessary to turn attention to cl 8.11 of the Guidelines. I note that it was not contended by the claimant that there is any inconsistency between s 81 of the Act and the Guidelines. The Principal Claims Assessor is required to issue a certificate of exemption when satisfied that, as at the time of the consideration of the application, the claim involves a denial (by the insurer) of the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle in its s 81 notice. There are other grounds specified for issue of a certificate exempting the claim from the processes of the Act and hence permitting proceedings to be commenced in the District Court but none of those are of relevance here.

36 The letter of 21 September 2011 purporting to be a s 81 notice did not deny fault. If the letter met the description of a s 81 notice (which, in my view, it did) then the Guidelines did not provide a foundation for mandatory issue of a certificate pursuant to s 92(1)(a). It follows that the third decision was correct.

The first decision

37 The first decision was based on the misapprehension (itself founded on the first instance decision in Gudelj v Motor Accidents Authority of New South Wales) that the deeming provision of s 81(3) did not apply because the claim was a late claim. The first decision was therefore based on a wrong principle and is liable to be set aside. However, as the question of exemption was, on the application of the claimant, reconsidered in the third decision, there would appear to be no point in quashing the decision and I understood Mr Hooke to regard the first decision as of concern only if the plaintiff's case in relation to the second and third decision was accepted and the Insurer then asserted that the first decision would then stand.

The second decision

38 This leaves the second decision. The primary attack on that decision was that it mistakenly treated the s 81 notice as valid. For the reasons given above, I think that the Assessor's approach was correct. Mr Hooke, however, argued that the decision was also flawed for other reasons, namely that the Assessor confined her consideration to the eleven matters enumerated in cl 14.16 of the Guidelines "and did not consider the matters flowing from the attitude of the insurer or what the Court of Appeal had to say in Gudelj v Motor Accidents Authority of New South Wales": see T22.17 - 27.

39 The relevant paragraphs of Gudelj v Motor Accidents Authority of New South Wales to which Mr Hooke was referring are [76] and [77].

40 Before Assessor Snell, the claimant contended that, by its letter of 24 January 2011, the Insurer put the claimant on notice that it denied liability and did not regard itself as bound by a s 94 certificate issued by CARS. The submissions (at p 51) seemed to posit a theory about what the Insurer might do but did not address the question of whether the claim was one not suitable for assessment under Pt 4.4 of the Act. None of the guideline items set out as cl 14.16.1 - cl 14.16.11 were mentioned.

41 It is clear that cl 14.16.7, cl 14.16.9, cl 14.16.10 and cl 14.16.11 were not relevant. Clause 14.16.1 of the Guidelines was not, as I have found, relevant. Assessor Snell in her reasons considered whether the claim involved complex medical issues and held it did not. She considered the aspect that the facts as related by the claimant were not challenged by the Insurer and that there was no claim of contributory negligence. She observed that none of the matters mentioned in cl 14.11 - cl 14.16 as relevant to a decision to exempt were shown (or even said by the claimant) to exist. Assessor Snell did identify as the gravamen of the claimant's application the argument that it was futile and not cost effective to proceed through CARS if the matter was likely to go to court in any event. Her view was that the fact that the Insurer maintained in that letter that the claim was late and did not accept the correctness of the decision to permit the late claim did not mean that the matter was likely to proceed to court. She pointed out:

"Parliament has provided for CARS to determine such disputes and s 73(3) permits a late claim that has been successfully determined in favour of the claimant to proceed to assessment before CARS. I have considered the objects of the Act in s 5 and I am not satisfied the objects would be furthered if the matter was exempted. I am not satisfied the costs will be less if the matter were to be exempted. Assessments in CARS are much shorter and are more cost effective."

The Insurer's position as expressed in its letter of 24 January 2011 was that it did not accept the conclusion that the claim could be made out of time. I have some difficulty in understanding how the Insurer could adopt such a position given the fact that s 96(4) makes a determination under s 96(1)(a) binding on the parties to the dispute. Further, a decision on damages is also binding on the insurer (s 94(1)(b)), although a decision on liability is not binding. By the time of the s 92(1)(b) application, the Insurer had advised that fault of its driver was admitted so there was little scope for argument about liability. Whilst it is not strictly relevant to the matters I am called on to decide at the hearing before me, the Insurer made it clear that it will abide by the CARS assessment: see p 81, T36.25 - 34 and T37.46 - T38.33. Assessor Snell was entitled to form a view on whether the Insurer was being obstructive or not and whether the matter was likely to proceed to court in any event and she formed the view, which I think was open to her, that the Insurer was not able to resist the approval of the late claim, that it was not clear that liability would be contested and that the matter was not one which for that or any other reason should be exempted. Her view that liability would not necessarily be contested was only strengthened by her recognition in her subsequent reasons that the Insurer had in fact admitted fault of the driver.

42 The paragraphs of Gudelj v Motor Accidents Authority of New South Wales to which I have referred in par [39] above relate to a situation where a claimant has filed a claim late and seeks a certificate pursuant to s 92(1)(a) or (b) (see s 73(3)(c)). That was not pertinent to this case because an assessment permitting the late claim had previously been made and the Assessor was not required to consider those sorts of matters.

43 In my view there is no discernable error in the approach taken to the issues and I do not accept the contention that Assessor Snell's reasons were "cursory".

44 It follows that there is no reason to set aside the second decision.

Conclusion

45 It follows that the plaintiff's summons should be dismissed and the plaintiff should pay the second defendant's costs of the proceedings.

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Decision last updated: 29 November 2012